The Challenging nature of PD work

I've been far too busy lawyering to post anything coherent, but I love using my own site to contain all the other sites I like to read, so I'll keep this up, even if I post rarely.

One thing to post: it is extremely expensive for our society to scrimp on providing effective counsel for poor people facing prison. Why? I save hundreds of thousands every month in unnecessary prison costs by saving clients, but when I fail it is often because I have far less time than I need to be as effective as I would like. But I can't spend that time.

Sure, if I did what I did in a private firms at market prices for my talents, I would make a cool quarter million a year, but money doesn't interest me beyond being comfortable, which I am, despite mucho loans that I hope to pay before I die (and suddenly my mortgage seems a worse deal than my law debt).

I see that people have to be more and more committed to turn down the draw of so much more money and so much more admiration for so much less work that it will get much harder to do my job for a long time before it gets better. Luckily, I am the type of person who the harder it gets, the more I relish it (up to my breaking point of course). After all, if it was as intellectually non-challenging to be a defense attorney as it was to be a prosecutor, I couldn't do it.

I'm not saying prosecutors don't have difficult decisions. Say when deciding when to exercise their discretion (or not being able to and dealing with that moral dilemma if they want to keep their jobs and must follow the party line). But if my job was like it is but involved proving the drug addict had cocaine that police found on them (which is as easy as many state cases), I would have left ages ago. So I'm hoping the work continues to be intellectually stimulating, but not continue to be so dramatically unfair I feel I've become part of an unfair system and make no difference and then move on.

Vote for Barak Obama November 4th

The choice couldn't be more clear. McCain is such a liar:

Evaluating McCain's misleading ads

Obama brings hope for change. McCain is hoping to win because he can confuse people into accepting the big lie that Obama is Muslim, Arab, a terrorist, or Iraq was connected to 9/11.

There's no doubt that there will be problems even with Obama. Things have been too messed up for too long to be quickly fixed. But an Obama administration has a much better chance to improve our country and return us to the right track faster than McCain. And God help us if McCain dies in office and we get Palin.

What attitude should PDs have towards victims/opposing counsel?

Skelly has a great post that raises a good question. How should a defense attorney for the poor feel towards and treat a victim, their family, or opposing counsel? One view confrontational view is:

“When I’m on trial and we’re in a truly adversarial proceeding, I hate the mother of the victim. I hate the father of the victim, I hate the children of the victim. I hate every part of it. It’s actually a terrible thing, but I can literally hate them when I’m fighting. I have to.”

I have one source for an asnwer. The oath sworn by Florida bar members states in pertinent part:

"I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;"

There are times where a defense lawyer must be offensive to be effective, but there are also many instances where a lawyer is simply offensive and thus becomes less effective. Guess what, no matter how fantastic a lawyer you are, as a public defender, most of your clients are going to be guilty. Thus, being an arse during pretrial hearings or depositions (yes, we get automatic depositions here, another great reason to be a defense lawyer in Florida state court) can make it far more difficult to get the plea that you want and your client deserves.

Trials are different. There are fewer opportunities to compromise. But first, I'll admit that I'm always looking for a way to get what my client wants. If a client is more interested in a settlement and a safe plea, then this could happen at any time up to and even after the jury verdict has come back! I mean, if you create some great appellate issues, you may want to approach the state and suggest an amenable resolution that will save the need for an appeal and the uncertainty that brings to both sides. This includes the recognition that the state may be very interested in closure for their victim or the victim's family, something a defense attorney can often be instrumental in bringing about. If obstructionism and closure is the only tool in our arsenal, why fritter away this opportunity to serve the client's needs by being unduly unpleasant?

When is it time to treat a victim or their family offensively? Well, when they come into court and lie on your client they become fair game. Same for any cops who do the same. Gently taking them downa notch is always an effective way to get a jury to reasonable doubt. If the key witnesses are incredible, you've got some great arguments.

A problem comes when a defense lawyer demonstrates excessive vitriol. Put forth enough energy to demonstrate your displeasure, but why hate? Hate is an evil word. Hate and revenge are natural feelings that people have but they are quite often what you want the jurors to suppress and ignore. My view is that if you get in a hate-off with the government and a wronged victim and/or the victim's family, your client loses. Our clients are rarely sympathetic. Sure, when I get an ex-military or otherwise really sympathetic client, I use that, but more often our clients are pretty down on the food chain. Jurors will far more easily sympathize with, say the person whose home or car was burglarized than a drug addict who needed a fix.

I love this quote from Skelly:

"Everyone, even the guilty criminal--especially the guilty criminal!--needs a companion, a friend, someone to stand with him and for him..." The defense lawyer's job is to force the system to acknowledge that the defendant is not just a social misfit, or a statistic, or a criminal, but a human being with hopes and dreams and fears. A human being who, like any of us, stands in need of repentance and redemption.. The question for the Christian lawyer is not, 'How can you work to get a guilty person off?' The real question is, 'Will you stand by this person, this flawed and sinful human being, and speak a word on his behalf?'" - Joseph G. Allegretti,The Lawyer's Calling

How can one show the humanity of a client and ask for the benefit of the doubt by denying the humanity of a person who was victimized by crime? Certainly liars do not deserve any sympathy from us, but treating liars with respect in exposing their lies is a good idea, I'd say, except and until the witness requires a forceful reaction.

I have no problem shedding a witness, but you usually do it with gentle questions and save the strong arguments for closing (after setting these issues up by getting them from the juror's mouths during voir dire and reminding them of what they'll see in opening statements). People who think that an attorney's consistently angry demeanor or clear dislike of the victim will win cases has obviously watched too much Law and Order and taken the wrong lessons. The lesson is that if you are perceived as the slimy defense lawyer with no concern for the humanity of the victim or their family, why should the jurors care about your client? To be persuasive, you want to be the most reasonable person in the room. A reasonable person recognizes the anger a person would feel from having their family member murdered, for example.

The point about focusing your sympathy on the client is well-taken. One can never focus on the sadness everyone can feel for sympathetic victims. Everyone should be able to feel sorry for families of murder victims, people who've been sexually abused, or people who've had things stolen or been physically attacked. But that feeling cannot dominate. One must feel most sympathetic for the client and their situation.

Too many defense lawyers for the poor get burned out. Then the lawyer gets fixated on how horrible their clients are for the things they do. And then instead of wanting to take responsiblity, the clients have the terminity to demand things like meeting with their lawyer! My attitude there is that, when necessary, a lawyer needs to gain the trust of the client and help them take responsiblity.

If the client doesn't want to take responsiblity after you've fully educated them, then fight along with them as much as you ethically can! Many clients just want someone to say that they believe in them, then all they want is a plea and the least jail time. If that's what they want, that's what you need to try and get for them. A client is a person whose view is to be respected, not a tool to use against the state or the judge to try and clog up the system. If the client wants to take that role and fight, good for them, but not at my behest.

After listening enough, the client will understand when you explain why, for example, they are likely to lose (if they are). If they still trust your advice and insist that they didn't do it or can't take this plea for X or Y reason, then you've got that red light to go to trial. Then break out the war paint. But you should always remember the teachings of Sun Tzu: "One hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful." Don't fight unless you have to, and if you do fight, fight in a way that the enemy (the victim, victim's family, the government) will not be angry at your scorched earth tactics, unless they are absolutely necessary.

Low point for any PD: Telling your client to lie or lying about doing so

I agree with Rumpy on his take on the whole Art Koch:

The attorney for the man sent to Death Row for raping and killing 9-year-old Jimmy Ryce more than a decade ago is expected to testify next week that he told his client to lie on the stand because he was on medication and ''disoriented'' during the trial.

There are few things more reprehensible than when someone from such a necessary but disrespected and trod upon profession go and act like the cliche. I find Koch's actions as offensive as cops should find when other cops go and break the laws and violate people's rights. It goes against all that we stand for and breeds contempt for the justice process.

This could all be a ploy. Maybe Koch is just trying to get Chavez a new trial. Given that I have no expectation that what a person says is true, especially someone like Koch whose basically saying that he's a liar and thus is instantly suspect (I don't buy the whole 'but I'm coming clean so you must believe me BS). But even if you philosophically disagree with the death penalty, it is hard to fathom how deep a person must be committed to its abolition to try and win Chavez a new trial, only prolonging the inevitable. They found the decedent's backpack in his home and he led police to where the boy was living. Either the police illegally obtained that confession or he's going to die (unless the jury can be convinced of mitigating factors)! What court wants to suppress that (we all know about that 'Christian Burial Speech' case with the facade of inevitable discovery being given the official imprimatuer by the Supremes)?

I don't doubt that another person could have killed the decedent and Chavez could have been framed or set-up, but still, two wrongs (or three, the killing was first, then the framing was second) don't make lying as a lawyer or getting your client to lie right!

Giving advice to clients

I hear from lots of attorneys about the difficulty in getting clients to make the right decisions. I hear that. Sometimes, especially when I'm taking over for other lawyer's clients, it can be hard to make them understand that sometimes admitting to something you didn't do is the right thing. I mean, they can take the chance and I'll go to trial any day on any case, but actual innocence gets you nowhere if you look guilty. Losing that gamble can mean years in prison.

And I hate trying to explain to people with unduly pessimistic or optimistic views of their case what reality is. I have to say 'Yes, you can lose and go to prison' or 'no, there is really no way that we can lose so you should consider take the risk and going to trial.' When I do the former, people often think I'm working for the prosecutor when I'm just trying to make them understand the drawbacks so they aren't later all surprised.

The hardest case for me are the arguable cases where there is no clear advice to give. I seem to have too many of these and thus too many clients looking to me. I didn't become a lawyer because I had a God complex. I don't want to make these decisions about people's lives, I came here to help people decide by providing them all the options and telling them that I'd fight hard for them whatever they choose.

But people's choice far too often is to say 'whatever you think.' What? Whatever I think? Geez, that's hard. Often I don't know enough to make a decision for them. Are they risk takers? How old are they? Have then done a long prison bid? Would losing totally change their life or are they doing life in prison on the installment plan anyways?

This certainly gives me something to give thanks about: at least I don't need to make these kind of horrible decisions on my own behalf.

Dealing with: "Are you a real lawyer?" question

As PDs well versed in the ways of the court, we know that there are plenty of great lawyers out there, not all of whom work for the PDs office (depending on your area - some areas, it might be all PD until you get upwards of paying $20K a case). Also, we all know that many PDs are overworked, so they don't have the time for hand holding that private attorneys can do. Heck, if I got $250 an hour for whatever, I'd do a lot more sympathetic listening and explaining too! I think I do a good enough job as it is, but some clients and their mothers who call every day would probably rather have a little more hand holding.

On the other hand, who wants to pay lots of extra money to get your hand held by some dude who is so bad that they're always asking the PDs in the courtroom not just how the judge is but how to do simple procedures?

Bottom line is that although I wish to avoid generalizations, I have noticed that a few of the PDs most offended at being called a public pretender or not a real lawyer are also the ones who perhaps most deserve criticism for not exuding confident professionalism.

Perhaps I'm just lucky, but after the hundreds and hundreds of clients (maybe I'm up to a thousand), nobody has gotten past the initial 'are you a real lawyer? ' thing. Maybe it has something to do with confidence. Guess what, if you are a real lawyer, you're not going to argue with your poor client about what they call you!

Let me set the scene. A client sees you and makes a comment demonstrating how they are unsure if you, a PD can help them.

Bad PDs think: 'why do I want to help this a-hole, who committed a crime and now wants to give me flack for trying to help his poor ass?'

Good PDs think: 'hmm, this would be a tad offensive to a lesser lawyer, but no more than the crime that this person committed. I have a thick skin because I am confident enough in my constitutional role to stand up and defend people who have often done things that I personally disagree with. In order for me to help this person, I need to succinctly explain to them my role.'

I spend less than a minute explaining my role, if necessary, and then demonstrate my comptency with my actions, not with fighting words. I'd say 'yes Mr. X, I am a lawyer. I decided to become a public defender because I believe that the amount of justice that a person receives should not be determined by the amount of money that the person has. Now, what is going on with your case?'

C'mon, the client who asks this question is often scared or worried and lacks the social skills to adequately ask about or even evaluate the level of service and effort that they are receiving. I bet that most clients are thinking that, perhaps because of the many bad PDs that we know of that they may have experienced. They are basically asking 'are you lazy and going to screw me because of it?'

Isn't that a natural question? I am a little more worried about the clients who don't ask because I know that they are placing their trust in me. Do I deserve their trust? I try. I have to appear confident.

Was I a great attorney when I first started? Well, I won my first few jury trials. But then I lost. Would I lose this trial now? Probably not. I might have planned it and done better or I probably would have convinced the client to plea.

Why do I think that is the best reaction to a person who questions you? Showing that you care about listening to the client, work hard for them, prove that you do a good job is the best answer.

Geez, this little comment turned into a rant. I think I'll post this on my site now!

Ode to good prosecutors

I must admit that I'm stealing this idea from somebody else (I can't remember who), but I wanted to put this out there. Wait, I remember it was Rumpole, who just posted another good thought about a life examined. So what is my view?

I love fair prosecutors. Those who know how to wield the enormous power that they have. It is so refreshing to see justice being offered. Plus it is so much easier to help your clients when the prosecutors are fair.

Sure, I can win some of cases. I at least know that I can make it much more difficult for them to get a conviction by at least dragging it out for a long time and raising many issues for appeal. But good prosecutors don't make me do that. They see a bad case as a bad case. Recognizing that they have the power to seriously screw someone, they know how to focus on the really bad guys and ignore the weaker criminals who've made some bad decisions but aren't violent or sociopaths. It is such a risk to take a case to trial with lots of prison on the line for most people, so allowing people who don't deserve being forced to prove their not guiltyness before judges liable to hand out prison time if they lose is the most heartening part of my job.

The guidelines are harsh and don't distinguish from people who just got out of prison and those who had some serious crimes 20 years ago. The drug laws are insane with the mandatory miniumums. You can't actually sell cocaine in south florida without being within 1,000 feet of a church, school, store. If the state wanted to, they could triple our prison population quickly. They could basically bust our budget by hammering everyone. But they don't. I thank them for it. And I am thankful for prosecutors who will listen to me when I say, hey, this is what this case is about, or those that will pay attention to what comes out in depos.

Books lawyers should read

From the ABA's recently e-mailed newsletter. Besides the books by Dickens, Harper Lee and Anthonly Lewis, I've read the Dali Lama's book. I highly recommend them and look forward to making time to read some of these:


Nasty People: How to Stop Being Hurt by Them Without Becoming One of
Them by Jay Carter. Every new attorney should be armed with some defenses
for dealing with nasty partners, co-workers, support staff, clients,
court personnel and the general public.

Sonia Larson
Sioux Falls, S.D.


The Likeability Factor by Tim Sanders. This book provides excellent
tips to improve your ability to communicate professionally and thereby
significantly enhance success. For lawyers who rely on communication for
their success, this book is a must! I have found this one of the most
helpful and successful tools to improve my work.

Jenny Hedderman
Boston


For all new women attorneys, particularly those going into larger law
firms, I recommend Nice Girls Don’t Get the Corner Office: 101
Unconscious Mistakes Women Make that Sabotage Their Careers by Lois P. Frankel.
The book covers topics ranging from the dangers of sharing too much
personal information at the office to effective verbal and e-mail
communication to professional image*all in short chapters arranged by "mistake"
(great for the time-starved new attorney).

Rebecca Kuehn
Washington, D.C.


Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law. Although it’s
geared toward litigators, the practical advice about interacting with
partners, assistants and clients is invaluable. It’s small and portable,
too!

Gregory Schwab
Philadelphia


The one book that has been the greatest gift to me in this trying first
year has been the Dalai Lama’s The Art of Happiness. What has this book
taught me? Whether I win or lose, whether my clients pay me or stiff
me, whether they think I’m brilliant or worthless at the close of a case,
I can define my happiness and job satisfaction by other measures than
my win-loss record, income or referrals from past clients or other
attorneys. Some things are just more important.

Richard Laws
Clarkston, Wash.


I would give Transforming Practices: Finding Joy and Satisfaction in
the Legal Life by [ABA Journal assistant managing editor] Steven Keeva. I
am a relatively new attorney (transformed from my prior life as a
registered nurse) but found this book helpful as I started out. I recommend
rereading it every few years to keep the joy in the practice of law. I
gave the book as a gift to several of my fellow students upon
graduation from law school. Never miss an opportunity to find joy in what you
do.

Kathleen Martin
Pottstown, Pa.


If one of my boys were graduating from law school, I’d give him a copy
of George Kaufman’s book, The Lawyer’s Guide to Balancing Life and
Work: Taking the Stress Out of Success. Kaufman helps his readers figure
out what is important in life, so this book can be very helpful for all
new lawyers.

Stephen Gallagher
Narberth, Pa.


Without question, I would recommend How to Start And Build A Law
Practice by Jay G. Foonberg. This wonderful book has more practical
information for a beginning (and also for an experienced) lawyer than any other
I have seen in 49 years of law practice. It does a lawyer no good to
know how to write in elegant style without a client whose objectives will
be advanced by the writing.

Put another way, in order to make a rabbit stew, it is first necessary
to catch the rabbit.

Jimmy Brill
Houston


Gideon’s Trumpet by Anthony Lewis; reading this book will show anyone
that lawyers make a difference in peoples’ lives for the better. Given
all of the bad news about lawyers, any new lawyer needs to know about
the good lawyers do in society.

Jonathan Dingus
Panama City, Fla.


Harper Lee set a high standard for all lawyers in To Kill a
Mockingbird. Her memorable characterization of country lawyer Atticus Finch
reminds us all that we are the guardians of the weak and disenfranchised, as
well as of a noble but imperfect system.

Melanie Dunajeski
Hammond, Ind.


The perfect choice would be The Law by Frederic Bastiat. His analysis
of the proper role of the rule of law, coupled with his daring
identification and indictment of the hows and whys of the improper usage of the
law is as timely today as it was when it was first published in 1850.

Charles Brower
Riverside, Calif.


It would have to be Bleak House by Charles Dickens. It shows the human
side of the law and the pitfalls of litigation for the parties
involved.

Jennifer Kislia
Le Claire, Iowa


For attorneys entering the criminal world, A Question of Evidence: The
Casebook of Great Forensic Controversies, from Napoleon to O.J. by
Colin Evans. This fascinating book analyzes the forensics used in
high-profile cases from the Shroud of Turin in the 1350s to the O.J. Simpson
case in the mid-90s. The book provides examples of the ability of
correctly interpreted forensic evidence to tell the true story for the victim,
and the ability of incorrectly interpreted (by mistake or on purpose)
forensic evidence to lie for the actual criminal and to mislead the
judge and jury.

For lawyers entering the civil law world, Difficult People at Work: How
to Cope, How to Win by Arthur Bell and Dayle Smith. This helpful book
analyzes various personality types and provides advice for dealing with
all types of people.

Kristin Vidovich
Alexandria, Va.


I’d recommend a pair of wonderfully insightful books whose content I’ve
worked to incorporate into my litigation practice. They are Courting
Justice by David Boies and Writing to Win: The Legal Writer by Steven
Stark. I’ve gifted copies because they’ve proven so useful.

Lars Hagen
Austin, Texas


As you embark on your voyage as a lawyer, The Successful Lawyer by
Gerald A. Riskin makes a great navigator. First and foremost, it important
that new lawyers create their own definitions of success and figure out
which roads they want to travel to get there, all the while juggling
the demands of trying to preserve their personal lives and time to render
service to their communities. A day spent with this book is a great
investment.

Sharon Nelson
Fairfax, Va.


I would suggest On Bulls--t, written by Harry G. Frankfurt, a
philosophy professor at Princeton University. This treatise deconstructs BS and
looks at it from a philosophical, linguistic and conceptual
perspective. As I enter my last year of law school, this book’s subject matter
becomes more and more relevant with every passing day.

Oren Geshuri
Los Angeles

Law Enforcement Against Prohibition

Gotta love Radley Balko, and especially this wonderful posting on L.E.A.P.. You've seriously got to watch the video. It is astounding.

Slate Article Describes My Daily Struggle

Gotta check this article out:

Gideon's Silence

Whatever happened to the right to counsel?

By Alexandra Natapoff
Posted Wednesday, May 31, 2006, at 5:35 PM ET

Judge Arthur L. Hunter Jr. is fed up. The complete destruction of the public-defender system has left more than 1,000 people sitting in soggy New Orleans jails without access to lawyers. So, Judge Hunter, a former police officer, is suspending prosecutions and setting defendants free. In the words of last week's New York Times, "alone among a dozen criminal court judges, he has granted a petition to free a prisoner facing serious charges without counsel, and is considering others."

Judge Hunter is responding to a hidden reality of the American criminal-justice system as a whole: Without defense counsel it grinds to a screeching halt. Suspects who lack lawyers may languish in jail without any sort of hearing for months, with no way to prove their innocence or even plead guilty. Once again, post-Katrina New Orleans reveals a national state of affairs, this one affecting courthouses across the country.

So, how bad is the post-Katrina state of criminal defense? "Indigent clients … remain in pretrial detention for up to five or six months without a single contact from an attorney." One woman "was in jail eleven months before a lawyer was appointed," while another person "spent thirteen months in jail without seeing a lawyer or a judge.

Wait a minute. These quotes are not from New Orleans, post-Katrina. They are from a 2004 American Bar Association report. And they describe, respectively, what's happening in Montana, Mississippi, and Georgia. The same report reveals what typically occurs when indigent defendants finally get a lawyer: Within hours or even minutes, they plead guilty. "At nine o'clock in the morning [in Crisp County, Ga.] they would be calling the calendar and no one … would have a lawyer. By twelve noon everybody will have pled guilty and been sentenced." In Quitman County, Miss., "42% of the indigent defense cases were resolved by guilty plea on … the first day the part-time contract defender met the client." One Alabama witness testified that "contract defenders in that state basically do nothing but process defendants to a guilty plea in as expeditious a manner as possible."

Whatever happened to "innocent until proven guilty"? This lack of meaningful defense is a nationwide phenomenon, and it's attributable in part to massive caseloads. Public defenders in states as diverse as New York and Nebraska carry caseloads of hundreds or even thousands of clients, and they may meet literally for minutes with them before that client pleads guilty or (only rarely) goes to trial. Even before Katrina, Louisiana indigent defense practices were described in the ABA report as follows: "What happens … is that on the morning of the trial, the public defender will introduce himself to his client, tell him the 'deal' that has been negotiated, and ask him to 'sign here.' "

Some states do not use public-defender systems at all but rely instead on low-bid contracts in which private lawyers compete to represent all the indigent defendants in a jurisdiction for one lump sum. This lump sum pays not only for the lawyer's time but for any investigation, experts, and other expenses. In its 2000 special report "Contracting for Indigent Defense Services," the U.S. Department of Justice documented the breakdown of this arrangement in numerous states, in which lawyers acquire hundreds of new clients with whom they may spend only minutes and whom they cannot properly represent. In one California example, the contract attorney was responsible for "more than 5,000 cases each year. … In order to make a profit, the contractor had to spend as little time as possible on each case." As the DOJ report points out, such low-bid contracts contain an inherent conflict of interest when every penny spent investigating the case, hiring experts, or going to trial comes out of the lawyer's pocket. Although a few courts have declared such low-bid, conflicted arrangements unconstitutional, numerous states and counties rely on them.

The ABA report concludes as follows:

[T]housands of persons are processed in America's courts every year either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation. All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exists in practice for countless people across the United States.

Unfortunately, our criminal system has become so immense and informal that we've lost sight of the constitutional guarantee of a meaningful defense. Approximately 80 percent of criminal defendants cannot afford counsel and must rely on publicly provided defense. While some public-defender offices still manage to provide excellent representation, they do so against
the odds. Suspects around the country routinely fill jails and wait weeks or months for a lawyer and a hearing. When they do finally get a lawyer, that person is typically so overworked that they have little time to talk to their client, investigate the case, research the law, or otherwise provide meaningful representation.

And so people plead guilty, at a rate of 90 percent to 95 percent. The criminal trial is nearly extinct. Most defendants never get the benefits of the constitutional protections contained in the Bill of Rights. To be charged with a crime means, in practice, that you will most likely plead guilty to a crime, not because you are guilty, but because the system offers no other realistic options.

This state of affairs has eroded our collective bedrock intuition that people are innocent until proven guilty. The New York Times tells us breathlessly that Judge Hunter actually released a person facing a serious charge and is even considering doing it again. As if it might be appropriate to keep people accused of "serious" crimes locked up without lawyers, just in case. But the right to decent counsel does not diminish when a person is accused of a really serious offense. If anything, the Constitution becomes more important the more serious the charge, and the more intrusive the government wants to be. After all, what were Hamdi and Padilla but cases in which the government alleged that the terrorism accusations were so "serious" that we should dispense with the usual constitutional protections? The Supreme Court, in its Hamdi opinion, rebuked the government for that stance, holding that even enemy combatants and terrorists cannot be detained indefinitely without due process and access to legal representation.

Ironically, poor U.S. citizens with no connections to al-Qaida have long languished in jails without counsel, or at least without counsel who can spend more than a few minutes showing them where to sign the guilty-plea papers.

So, back to Judge Hunter. Although he was galvanized by disaster, his response is actually quite modest: He is trying to enforce the Sixth Amendment of the U.S. Constitution, which reads: "In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense." The U.S. Supreme Court has made it clear for decades that if the government wants to prosecute and incarcerate an individual, it can only do so if that person has a competent lawyer. In its landmark case Gideon v. Wainwright the court invalidated Clarence Gideon's conviction because he wasn't represented. Threw the conviction out. Overturned it. Told the government: "You can't do that. No lawyer, no prosecution." Today, Judge Hunter is saying no less.

This is yet another one of those "Katrina moments" in which we realize that post-Katrina New Orleans is a high-definition example of how this nation routinely treats the poor and people of color. Right after the hurricane, the Brookings Institution issued a report on national poverty saying that, "Hurricane Katrina's assault on New Orleans' most vulnerable residents and neighborhoods has reinvigorated the dialogue on race and class in America." Well, today, Judge Hunter re-reinvigorates that dialogue, this time over the right to counsel for those same poor, vulnerable individuals. Just as important, he reminds us all that it shouldn't take a hurricane to uphold the Constitution.